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Non Raceday Inquiry RIU v C E Rauhihi - Decision dated 14 August 2019 - Chair, Hon J W Gendall QC

Created on 16 August 2019

BEFORE A JUDICIAL COMMITTEE OF THE NZ JUDICIAL CONTROL AUTHORITY

IN THE MATTER of

Charges under the NZ Thoroughbred Rules of Racing

BETWEEN

RACING INTEGRITY UNIT (RIU)

Simon Andrew Irving

Investigator/ Informant

AND

CHRIS EVERET RAUHIHI

Licensed Class B Trainer

Respondent

Judicial Committee

Hon J W Gendall QC – Chair

Mr T Utikere – Member

APPEARANCES

Mr C E Rauhihi, assisted by Lay Representative, Mr Paora

Hearing held at Awapuni Racecourse on 13 August 2019

Decision (reasons for liability and penalty)

[1] Mr Rauhihi is a Class B licensed trainer in business at Foxton Racecourse. The RIU has charged him with 2 offences under the Rules of Racing.

[2] First, he is charged with misconducting himself in contravention of Rule 340 in that on 12 June 2019 he assaulted (by a punch to the face) another Class B licensed trainer, Geoffrey Georgetti at the Levin Racing Club stables on a day when jumpouts were being held by that Club.

[3] The “misconduct” Rule 340 provides:

“a licensed person, owner, lessee, racing manager, official or other person bound by these rules must not misconduct himself in any matter relating to the conduct of Rules of Racing”

[4] The penalty provision is contained in Rule 803 (1) which provides for a range of penalties:

(a) Disqualification for a period not exceeding 12 months

(b) And/or a suspension from holding a licence for a period not exceeding 12 months

(c) And/or a fine not exceeding $20,000

[5] Mr Rauhihi has admitted the charge.

[6] The second charge is brought under Rule 656 (3) in that he produced a urine sample on 10 July 2019 which contained the controlled drug cannabis (THC). Mr Rauhihi has admitted that charge.

FACTS OF THE OFFENDING

[7] Mr Rauhihi pre trained a 3-year-old filly for Licensed Class B trainer Mr Georgetti. Mr Rauhihi claimed that he was owed $500 by Mr Georgetti. That was disputed by the latter. There is no information available as to how the alleged debt arose or if it did, or in what context. On 3 April 2019 Mr Rauhihi confronted Mr Georgetti at Levin jump outs and a heated argument occurred. Certain threats were made by Mr Rauhihi to Mr Georgetti. After this was reported to RIU investigators, Mr Rauhihi was issued with a warning on18 April 2019 regarding his behaviour.

[8] Notwithstanding that warning, Mr Rauhihi again confronted Mr Georgetti at the Levin Club stables on 12 June 2019 when jump outs run by the club were in progress. Mr Georgetti was not looking for any altercation – he held an infant in his arms, Mr Rauhihi’s approach was aggressive and angry, as illustrated by his saying “Put your son down; I want to f….. smash you” or similar words. He then struck Mr Georgetti with a forceful punch to the face causing a cut and bruising. The police were called to the racecourse by bystanders and Mr Rauhihi was arrested, charged with assault and appeared in the Palmerston North District Court. We are told that he has not yet pleaded nor been dealt with by the court.

[9} The second charge arose on 10 July 2019 at which time Mr Rauhihi was served with the misconduct charge. Along with 10 others randomly chosen at Foxton Racecourse, he was required to provide a urine sample for drug and alcohol testing. He was required to do so as a person engaged in riding or carrying out a “Safety Sensitive Activity.” He was not then riding trackwork but working with and saddling horses. The sample taken at 8.30am gave an indication of THC/cannabis. He later said that he was a regular user of cannabis and knew that the test would be positive. Analysis by the ESR of the sample disclosed it was positive to THC/cannabis at a level in excess of 300ng per millilitre. This is known to be a high range level - indeed over double that laid down, in a different sporting context, by the World Antidoping Agency in sport, which has a maximum threshold level of 150 ng for competing athletes. As a consequence, Mr Rauhihi is also charged that on 10 July 2019, when as required under Rule 656(3), he produced a urine sample which contained the controlled drug cannabis (THC) as defined in the Misuse of Drugs Act 1975. Under Rule 656(3) any rider or other licence holder who is carrying out or likely to carry out a Safety Sensitive Activity at a racecourse, trainer’s premises or training facility commits an offence if he/she produce a sample containing such a controlled drug.

[10] A breach of this rule as it relates to drugs or alcohol carries a liability for penalties set out by Rule 803 (3), namely;

• disqualification for a period not exceeding 5 years; and/or

• suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

• a fine not exceeding $50,000

[11] Mr Rauhihi has admitted the charge. He, through his advocate, told the Committee that he has about 19 horses in work, has a partner and young family, and has limited financial means. He said the assault matter “got out of hand” and was not dealt with in a respectful or professional manner. He said he had seen a drug counsellor, and although for the moment had not followed up this avenue, he wished to do so. He was somewhat vague and imprecise in his statement to us how determined he was to do this.

PENALTIES

[12] We turn now to fix penalties for the two offences.

[13] We deal first with the misconduct offence. Misconduct under Rule 340 can encompass an infinite variety of behaviour. It is clearly designed to protect the interest of all who are involved in the racing industry, and those who may in any way be involved in racing matters. It goes as wide as the community at large which may be harmed by misconduct under the Rules by licenceholders, officials, etc. It is designed also to protect and enhance the reputation and credibility of thoroughbred racing in the eyes of the public and community. If there is misconduct this reputation is harmed.

[14] Serious breaches of the Rules which go unchecked will mean the public confidence diminishes and the standing of the code is harmed, with consequential reputational and financial support jeopardised.

[15] An assault is a criminal act. Assault by a licence holder on another licence holder on a racecourse or associated stable during a meeting, trials, jump outs is significant misconduct, lamentable and not to be condoned. Mr Rauhihi’s actions were intentional, violent behaviour in total disregard of his obligations as a trainer – as well as a breach of the criminal law - and in defiance of the warning that he had been given. It was inexcusable and there are no mitigating features that relate to the offending. It is NOT a mitigating feature requiring any discount in penalty simply because he admitted the charge because any defence would have been futile. But we take into account as mitigation his record – at least up until this – of no previous offences. We add now that such record cannot avail him in respect to the further and separate charge which arose later.

[16] Mr Rauhihi is aged 32 and has a small training business. He has not supplied details of his income, expenses, financial means and matters relevant to his means to meet a fine and costs. But we keep in mind that the principles of “sentencing” are not just to punish the wrongdoer, but importantly to provide personal deterrence to the offender, and general deterrence to others from being tempted to likewise offend. It is also a factor that the wider interests, standing and reputation of the code come into play. For an offence such as this - and viewing it in isolation and separate from the later drug offending - we adopt a starting point of a fine of $1800 rather than disqualification or suspension. There is no uplift for any then aggravating factors. We decline to give any discount for the guilty pleas as any defence to challenge the charge would have been futile. He is entitled to a discount for his previous good record and remorse which has been expressed. Taking into account the factors described by the Supreme Court in R. V Hessell, (to which the JCA referred in a recent decision to LAWSON), we allow as mitigating factors a little over 10%.

]17] Accordingly, under Rule 803(2) Mr Rauhihi is ordered to pay a fine of $1,600 on the misconduct charge.

[18] The questions of costs are dealt with in conjunction with the drug charge as both matters have been dealt with at the same hearing.

[19] Turning to penalty on the drug offence under Rule 656(3). As can be seen from the range and level of possible penalties contained in Rule 803(3) drug and alcohol offences are regarded very seriously. Those who work with horses, whether it be on raceday, training, at stables, trials, jump outs, or anywhere if a risk of harm to others and horses exists, will place all in jeopardy if they are under the influence of drugs or alcohol. THC (tetrahydrocannabinol) is the principal psychoactive constituent of cannabis. It is fat soluble and can be stored in the body for quite long periods. Regular users are said to have a longer clearance time than infrequent user. Mr Rauhihi’s statement that he regularly uses cannabis, and the very high level of THC in his sample, compels us to the conclusion that he had in the past used the drug in significant amounts, before and after the misconduct events. His statements to us that he now desists were not convincing, That this drug is called euphemistically “recreational” is a deceptive misnomer - it is performance affecting and can put others (such as road users where drivers are drug affected) at risk of harm, and is prohibited by the rules which govern racing.

[20] It is scientifically established that repeated ingestion of cannabinoids can

• impair physical activity including exercise performance.

• decrease hand-eye coordination and distort spatial perception as well as muscle relaxation

• increase risk taking behaviour

[21] Mr Rauhihi’s admitted regular use of cannabis, his high level sample - twice that of the 150ng threshold for athletes competing under WADA rules (we recognise they do not apply to Mr Rauhihi but are indicative of the serious level of his sample) – leave us with considerable concern about his risk to those working alongside him in the training and racing of horses.

We do not accept that under the Rules his trainer’s licence cannot be suspended as this is his first proven breach, because the proviso to the penalty Rule 803(3) states:

“That if the Licence holder committing an alcohol related breach is a Trainer and it is the Trainer’s first offence under these Rules in relation to drugs or alcohol …. then that Trainer may be fined a sum not exceeding $50,000 but shall not be suspended or disqualified for committing that first breach.”

But this does not apply to Mr Rauhihi as this is his first offence under the Rule, because it is a drug related, and not alcohol related, offence. The proviso deliberately distinguishes the two. Perhaps that is because it was thought that where there was only one instance of a trainer imbibing to excess with alcohol that so as to return a positive sample, he should not face suspension. But this proviso does not apply to drug use. Nevertheless, we are prepared to impose only a fine, but he might count himself fortunate because if he continues with his habit whilst he continues to ride horses and work as a trainer, he puts others and his horses at risk and can expect more serious sanctions.

[22] Because of the level of THC and all the circumstances, the event is not minor. We take as a starting point a fine of $1000. There are no mitigating circumstances – other than no previous drug related offence (and if there had been, a suspension of his trainer’s licence was likely to follow). But as this offence occurred after the assault misconduct offence, to that extent that it can been seen as an aggravating factor. So, too is the admitted fact that Mr Rauhihi has made it a habit to regularly use cannabis whilst a licensed trainer. We do not accept that this event was an isolated situation when he had such a high THC level. There will be an uplift of 10% to reflect those factors, but we balance against that the acceptance of guilt and his cooperation with the Investigator.

[23} Accordingly on this offence, Mr Rauhihi is fined $1000.

[24] Although Mr Irving referred us to other penalty decisions as having some precedence value, we do not see that to be the case. Many cases are distinguishable if, for example, an offender has a very low level of THC (such as in BISHOP), or a suspension of a trainers’ or jockeys’ licence also is imposed. Every sentencing exercise is fact dependant on personal and multiple factors unique to it.

[25] When delivering our oral decision that there be fines of $1300 and $1000, we also said there was to be a two-month suspension from 10 July 2019 until 10 September 2019. We did this intending it to relate only to riding track work, as the RIU had referred to what it said was the “standard” penalty of a total of 6 weeks FROM TRACK RIDING, and Mr Rauhihi had been suspended from this activity since July. We are now aware that he does not have a track workers licence, but as he told us he is required to do rides as his workers are “unreliable.” The position of the RIU created confusion because without a licence there can be nothing to suspend – and the suspension of his trainer’s licence was not in contemplation. Given the provisions in Rule 657 (1)(b), Mr Rauhihi had no riding licence to the withdraw, but could have had his trainer’s licence withdrawn until the Judicial Committee heard the matter. So he appears to have been fortunate in the benevolent way the Investigator treated him. But we must correct our penalty decision and remove any suspension of a licence.

[26] It is proper that Mr Rauhihi pay a contribution towards the costs of the RIU and JCA. Naturally it does not reflect actual costs incurred and we recognise that his acceptance of liability has limited those costs. A total figure, as related to both charges, is fixed at $250 to the RIU and $250 towards the costs of the JCA. The total financial penalties therefore are $2,300 fines and $500 costs. In addition he is ordered to pay to the RIU the amount of the Analyst’s fee, $187.50.

Dated at Wellington this 14th day of August 2019

Hon J W Gendall QC

Chair

Mr T Utikere

Member

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